PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
WAYNE A. SMITH, A34-470-066,
Petitioner,

v.
JOHN ASHCROFT, Attorney General of
the United States; KEVIN ROONEY,
acting Commissioner of the
Immigration and Naturalization
Service; LOUIS D. CROCETTI, JR., as
Baltimore, Maryland District
Director of the Immigration and
Naturalization Service; U.S.
IMMIGRATION & NATURALIZATION
SERVICE,
Respondents.

No. 01-2004

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-01-2020-PJM)
Argued: May 6, 2002
Decided: July 1, 2002
Before NIEMEYER and GREGORY, Circuit Judges, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.

Affirmed by published opinion. Senior Judge Beam wrote the opinion, in which Judge Niemeyer and Judge Gregory joined.

SMITH v. ASHCROFT

COUNSEL
ARGUED: Raj Sanjeet Singh, RAJ S. SINGH C.P.A., ESQ. P.C.,
Rockville, Maryland, for Petitioner. Papu Sandhu, Senior Litigation
Counsel, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondents. ON BRIEF: Robert D. McCallum, Jr., Assistant Attorney General, Emily Anne Radford, Assistant Director, Office of
Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.

OPINION
BEAM, Senior Circuit Judge:
Wayne Ancil Smith, a citizen of Trinidad, contends that he was
denied procedural due process in violation of the Fifth Amendment
in the course of his deportation proceedings in 1998. We disagree and
affirm the district courts dismissal of his 28 U.S.C. 2241 habeas
corpus petition.
I.
Smith entered the United States in 1967 as the dependent of a diplomatic visa holder, and became a lawful permanent resident in 1974.
This was his status in March 1992 when he entered a plea of guilty
to felony drug charges. Based on that conviction, in March 1996, pursuant to the Immigration and Naturalization Act, 8 U.S.C. 1101 et
seq. (the Act), the INS issued an order to show cause why he should
not be deported as an alien convicted of a law relating to a controlled
substance and as an alien convicted of an aggravated felony.
In the administrative deportation proceedings, Smith applied for a
waiver of deportation under the former section 212(c) of the Act, 8
U.S.C. 1182(c). This section granted the Attorney General broad
discretion to admit aliens who would otherwise be excludable, and
had been interpreted by the Board of Immigration Appeals (BIA) as
authorizing any permanent resident alien with seven consecutive

SMITH v. ASHCROFT

years of lawful domicile to apply for a discretionary waiver of deportation. See INS v. St. Cyr, 533 U.S. 289, 294-95 (2001). The immigration judge denied the request, reasoning that amendments to the Act
pursuant to the newly enacted Antiterrorism and Effective Death Penalty Act (AEDPA) precluded section 212(c) waivers for drug offenders. The immigration judge ordered Smith deported in April 1997.
Smith timely appealed the immigration judges ruling to the BIA,
which denied the appeal on August 24, 1998. Like the immigration
judge, the BIA also concluded that application of AEDPAs amendments to section 212(c) precluded Smith from presenting his case for
or obtaining, on the merits, a discretionary waiver. On November 9,
1998, Smith challenged the BIAs adjudication by filing a petition for
writ of habeas corpus in the United States District Court for the District of Maryland. The district court ruled that it did not have jurisdiction over an "appeal" of a BIA adjudication and transferred the case
to this Circuit pursuant to 28 U.S.C. 1631. This court denied a stay
of deportation and granted the governments motion to dismiss for
lack of jurisdiction. Smith was deported on December 7, 1998.
Smith illegally reentered the United States through Detroit in January 1999, and returned to his home in Maryland. He remained there
undiscovered until he was pulled over for a traffic stop a few years
later. The government immediately moved to reinstate the deportation
order under 8 U.S.C. 1231(a)(5), and Smith was ordered removed
without a hearing on March 16, 2001. On July 9, 2001, Smith challenged this ruling by filing a habeas petition with the district court.
The district court dismissed the petition without elaboration, but
stayed removal for sixty days. On October 3, 2001, this court denied
Smiths motion for stay of removal and Smith was deported to Trinidad on December 13, 2001. Smith has timely appealed the dismissal
of the habeas petition.
II.
We first address the issue of jurisdiction. The government argues
that we have no jurisdiction because Smith is not currently "in custody," but instead has been deported and is out of the country. However, Smith needed only to be "in custody" at the time the petition
was filed to avoid a jurisdictional challenge based on the "in custody"

SMITH v. ASHCROFT

requirements of the habeas statute. Chong v. INS, 264 F.3d 378, 38283 (3d Cir. 2001) (citing Carafas v. LaVallee, 391 U.S. 234, 238
(1968)). In Carafas, the Supreme Court held that where the petitioner
was in custody at the time the petition was filed, his release from
prison before the petition for certiorari was filed did not moot the case
because petitioner could still suffer "serious disabilities because of the
laws complexities and not because of his fault, if his claim that he
has been illegally convicted is meritorious." Carafas, 391 U.S. at 239;
cf. Spencer v. Kemna, 523 U.S. 1, 7 (1998) (petitioner who was incarcerated at the time the petition was filed satisfies "in custody" requirement of 28 U.S.C. 2254).
Smith was in custody at the time the petition was filed, and though
Smith is no longer in the United States, he is unmistakably affected
by the legal implications of our decision. If he prevails, there is a possibility he can beneficially unravel his untoward immigration status.
Thus, because Smith was in custody at the time he filed the petition,
we have not lost jurisdiction over this appeal.
In St. Cyr, prior to ruling on whether AEDPA retroactively applied
to bar discretionary section 212(c) relief, the Supreme Court
addressed the initial question of habeas jurisdiction. The government
had argued that the jurisdiction-stripping provisions of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) left no judicial forum available. The Court reasoned that
because Congress did not make a plain statement revoking habeas
jurisdiction and because there was no other available forum to adjudicate the purely legal question at issue, habeas jurisdiction was appropriate in the district court. 533 U.S. at 314. The Court also determined
that construing the IIRIRA provisions to preclude court review of a
"pure question of law" would lead to "substantial constitutional questions." Id. at 300. Therefore, habeas jurisdiction was made available
to the petitioner. Id. at 314.
Although this case is in a somewhat different procedural posture
than St. Cyr, its principles are applicable here. As in St. Cyr, the Act
bars direct judicial consideration of Smiths claim. Smith contends
that his Fifth Amendment right to due process was violated by the
1998 deportation proceedings because he was not given court review
of the BIA ruling that he was not entitled to discretionary relief. The

SMITH v. ASHCROFT

Act currently prohibits direct judicial review of this claim because it

implicates the validity of a prior order of removal. The Act, 8 U.S.C.
1231(a)(5), provides in pertinent part: "[i]f . . . an alien has reentered . . . after having been removed . . . the prior order of removal
is reinstated from its original date and is not subject to being reopened
or reviewed."1 This section precludes direct, non-habeas judicial
review of any irregularities associated with the 1998 deportation
order. Thus, if we do not find habeas jurisdiction, Smith, like the petitioner in St. Cyr, is left without an available forum for adjudication
of this purely legal question. To construe the Act to preclude all
review of this claim would raise constitutional concerns similar to
those expressed by the St. Cyr Court.
The government argues that Smiths claim is distinguishable from
St. Cyr because Smith was afforded a full opportunity to litigate this
claim in the prior proceeding. However, that is not quite correct. As
the government admits in its brief, the procedure for appealing the
August 1998 BIA decision was not entirely clear at the time. Smith
filed a petition for habeas corpus with the district court, which the district court construed as a petition for direct review and transferred to
this court. This court dismissed for lack of jurisdiction, likely because
the IIRIRA, which had become effective in April 1997, precluded
judicial review for denials of discretionary relief and for aliens
removable because they have committed a criminal offense. See 8
U.S.C. 1252(a)(2)(B) & (C).
Subsequently, this court held in Bowrin v. INS, 194 F.3d 483, 489
(4th Cir. 1999) (per curiam), that the district court had habeas jurisdiction to review questions of law relating to the administrative denial
of 212(c) relief. Obviously, then, Smiths petition for habeas consideration, filed prior to Bowrin in 1998, simply fell between the judicial
cracks. Thus, we disagree with the governments argument that St.
1

In his brief and at argument, Smith purported to challenge the constitutionality of 8 U.S.C. 1231(a)(5). However, this claim was not
advanced in the habeas petition or in briefing to the district court. We
therefore decline to take up the issue on appeal.

SMITH v. ASHCROFT

Cyrs jurisdictional ruling is distinguishable from this case. Accordingly, the district court had habeas jurisdiction over Smiths claim.2
Smith argues that the Due Process Clause of the Fifth Amendment
was violated in 1998 by the lack of meaningful review of the immigration judges refusal to grant him section 212(c) relief and suspend
deportation. In order to advance a due process claim, Smith must first
establish that he had a property or liberty interest at stake. Stewart v.
Bailey, 7 F.3d 384, 392 (4th Cir. 1993); Jamil v. Secretary, Dept of
Defense, 910 F.2d 1203, 1209 (4th Cir. 1990). Smith cannot meet this
initial burden, because he has no property or liberty interest in the
"right" to discretionary section 212(c) relief.
In order for a statute to create a vested liberty or property interest
giving rise to procedural due process protection, it must confer more
than a mere expectation (even one supported by consistent government practice) of a benefit. Mallette v. Arlington County Employees
Supplemental Ret. Sys. II, 91 F.3d 630, 635 (4th Cir. 1996). There
must be entitlement to the benefit as directed by statute, and the statute must "act to limit meaningfully the discretion of the decisionmakers." Id. (quoting Board of Pardons v. Allen, 482 U.S. 369, 382
(1987) (OConnor, J. dissenting)).
On many occasions this circuit has held that discretionary statutory
"rights" do not create liberty or property interests protected by the
Due Process Clause. For instance, the discretionary right to suspension of deportation does not give rise to a liberty or property interest
protected by the Due Process Clause. Appiah v. INS, 202 F.3d 704,
709 (4th Cir.), cert. denied, 531 U.S. 857 (2000). In Appiah, petition2

Smith alternatively argues that we treat this as a petition for direct

review pursuant to 8 U.S.C. 1252(a). Although we would have jurisdiction to review the order of reinstatement, Velasquez-Gabriel v. Crocetti,
263 F.3d 102, 105 (4th Cir. 2001), we do not have jurisdiction under section 1252(a) to inquire into the prior order of deportation, according to
the terms of section 1231(a)(5). Ojeda-Terrazas v. Ashcroft, No. 0160460, 2002 WL 721069, *1 (5th Cir. May 9, 2002) As we understand
the claim Smith is making in this appeal, a petition for direct review
under section 1252(a) would not provide the relief he seeks. We therefore decline to treat it as such.

SMITH v. ASHCROFT

ers were challenging the constitutionality of IIRIRAs new "stop

time" provisions,3 and the case was before this court on direct judicial
review under the Act. The court held that because suspension of
deportation is discretionary, it does not create a liberty or property
interest protected by the Due Process Clause. Id. "This is true even
where the state frequently has granted the relief sought." Id. See,
e.g., Ashki v. INS, 233 F.3d 913, 921 (6th Cir. 2000) (discretionary
right to suspension of deportation is not an interest protected by the
Due Process Clause); Telfel v. Reno, 180 F.3d 1286, 1301 (11th Cir.
1999) (same).
Similarly, this circuit held that because the Army had discretion to
discharge enlisted personnel, a service member had no property interest in continued employment with the Army. Guerra v. Scruggs, 942
F.2d 270, 278 (4th Cir. 1991). On the other hand, in Mallette, the
court noted that under the county disability retirement ordinance, once
an employee had met particularized eligibility standards, the Retirement Systems Board did not have discretion to deny the employee
benefits. Mallette, 91 F.3d at 635. Thus, the county employees who
met the requirements had a claim of entitlement in disability retirement benefits protected by due process. Id. at 636.
Former section 212(c) did not in any way limit the discretion of the
Attorney General to admit otherwise deportable aliens. This statute in
no way created an entitlement to a waiver of deportation, as it "grant[ed] the Attorney General broad discretion to admit excludable
aliens." St. Cyr, 533 U.S. at 294-95 (emphasis added). The Act like3

Prior to enactment of the IIRIRA, one of the conditions an alien had

to establish to be considered for a suspension of deportation was that the
alien be continuously physically present in the United States for at least
seven years immediately preceding the date of application for suspension
of deportation. See 8 U.S.C. 1254(a) (1994). Prior to the IIRIRA, the
time spent in deportation proceedings counted toward the continuous
seven-year requirement. Id. The IIRIRA changed this by providing that
"any period of continuous residence or continuous physical presence in
the United States shall be deemed to end when the alien is served a
notice to appear." 8 U.S.C. 1229b(d)(1). Thus, the initiation of deportation proceedings effectively "stops the clock," and an alien can no longer
continue to accrue years for the physical presence requirement after proceedings have begun. Appiah, 202 F.3d at 707.

SMITH v. ASHCROFT

wise did not limit whatsoever the Attorney Generals discretion to

waive deportability. Accordingly, Smith had no protected liberty or
property interest in discretionary 212(c) relief, a circumstance fatal to
his due process claim.
Smith cites United States v. Mendoza-Lopez, 481 U.S. 828 (1987),
for the proposition that, without regard to liberty or property interests,
his due process rights were violated in 1998 by a lack of meaningful
review in a judicial forum. We disagree with this contention. In
Mendoza-Lopez, the question before the court was whether a defendant who was being criminally prosecuted for illegally reentering
after lawful deportation could collaterally attack the prior deportation
order. The Court concluded that since lawful deportation was a material element of the statutory offense, due process required, in this limited situation, a pretrial review of whether the prior deportation order
was lawful. Id. at 837-38. This was especially true when "defects in
an administrative proceeding foreclose judicial review of that proceeding." Id. at 838.
Thus, while the Mendoza-Lopez Court admittedly espoused judicial
review of administrative actions, the Court reasoned that review is
essential when the outcome of the administrative proceeding is used
as an element for criminal conviction. Id. at 839. It is an overly
expansive, and in fact, an incorrect, reading of Mendoza-Lopez to
suggest that the Constitution requires "meaningful review" of any and
all administrative procedures.4
III.
For the foregoing reasons, we hold that, while the district court did
have jurisdiction over Smiths habeas corpus petition, because Smith
has no liberty or property interest in a discretionary waiver of
deportability, the petition must be denied on the merits.
AFFIRMED
4

The parties also advance arguments concerning the retroactive application of St. Cyrs holding that AEDPA does not bar section 212(c) relief
for aliens who pled guilty prior to its enactment, and cite both Bousley
v. United States, 523 U.S. 614 (1998), and Harper v. Virginia Dept of
Taxation, 509 U.S. 86 (1993). However, because we find that Smith has
no meritorious constitutional claim, we need not decide the issue.